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2018 DIGILAW 588 (RAJ)

Sanjay Bhansali v. Jaipur Development Authority

2018-02-20

ALOK SHARMA

body2018
JUDGMENT : Alok Sharma, J. 1. A challenge has been laid by the appellant-plaintiff (hereinafter 'the Plaintiff') to the judgment and decree dated 23.11.1998 passed by the Additional District Judge No. 4, Jaipur city, Jaipur in Appeal No. 58/1996 dismissing the plaintiff's appeal and affirming the judgment and decree dated 7.9.1996 passed by the Civil Judge (Junior Division) Jaipur City (East) Jaipur in Civil Suit No. 847/1990 dismissing the suit for permanent injunction. 2. The plaintiffs filed a suit for permanent injunction claiming that plot No. J-50 Sarojni Marg was originally allotted to one Umaro Singh in the year 1959 by Urban Improvement Trust Jaipur. By further sales its ownership came to one Hukmraj Bhansali, plaintiff's father, on 14.12.1977 through a registered sale deed. It was stated that a strip of land was situate immediately behind the said plot going upto a drain, which was being enjoyed by the plaintiff and owners of plot No. J-50 aforesaid. It was stated that the defendant JDA (hereafter 'JDA') was determined to demolish the existing constructions over plot No. J-50 and dispossess the plaintiff from the strip of land behind the said plot. 3. Despite service of notice on the plaint, the defendants Jaipur Development Authority (JDA) nor the other did file written statement and were made ex-parte and so remained during the trial. The plaintiff examined himself and produced ten documents in support of his case. 4. Considering the evidence laid by the plaintiff, the trial court found that the JDA had served notices to plaintiff's mother Laxmi Bhansali regarding plot No. J-50 for raising construction over the portion of set-back without statutorily required approval the construction map from JDA. It found that as far as the strip of land behind plot No. J-50 was concerned, the plaintiff's case was absolutely vague as the dimensions of the strip of land of which the plaintiff was allegedly in possession were neither stated, nor any proof of the plaintiff's possession thereof submitted. Contrarily on the plaintiff's own case the defendant JDA was the owner of the strip of land in issue. Hence the plaintiff at best was an encroacher if at all, and hence not entitled to an injunction against the true owner. Contrarily on the plaintiff's own case the defendant JDA was the owner of the strip of land in issue. Hence the plaintiff at best was an encroacher if at all, and hence not entitled to an injunction against the true owner. Therefore the trial court vide judgment and decree dated 7-9-1996 while restraining the JDA from demolishing the allegedly unauthorised construction over Plot No. J-50 in the plaintiff's ownership without following due procedure, dismissed the suit qua permanent injunction in respect of the strip of land behind plot No. J-50. The plaintiffs' regular first appeal under Section 96 CPC thereagainst failed and the trial court's judgment affirmed vide the first appellate court's judgment dated 23-11-1998. Hence this second appeal. 5. On 5.4.1999, the second appeal was admitted on the substantial question of law framed as to whether in the absence of the written statement the trial court was right in disbelieving the uncontroverted evidence of the plaintiff? 6. Heard counsel for the plaintiff, the appellant herein. 7. A perusal of the impugned judgments and decree passed by the trial court as affirmed in appeal indicates that the plaintiff had failed to prove his own possession over the strip of land admittedly in the ownership of the JDA. In fact he had not even detailed the dimensions of the strip of land. In the circumstances no blanket injunction could issue, if at all against the admitted owner the JDA. On the issue of demolition of construction over plot No. J-50 in the ownership of the plaintiff, the trial court rightly held as affirmed in appeal that the question whether the construction was as per applicable building bye-laws of the JDA or not was for the statutory authority to determine on notice admittedly issued under the Jaipur Development Authority Act, 1982 (hereafter 'the Act of 1982') to the plaintiff, and not for the civil court, lacking in jurisdiction, to address the issue as admittedly Section 83 of the Act of 1982 conferred exclusive powers on the JDA Tribunal to address all challenges to JDA action/orders. 8. The courts below have concurrently reached findings of fact on appreciation of evidence of the plaintiff and have dismissed the plaintiff's suit. 8. The courts below have concurrently reached findings of fact on appreciation of evidence of the plaintiff and have dismissed the plaintiff's suit. The question of law as framed can be barely be said to be one, what of substantial-a substantial question of law at the very least is one which has not been addressed and earlier decided. The defendant being ex-parte does not and cannot lead to mechanical decreeing of the plaintiff's suit as has been held in catena of cases. It is always for the plaintiff, even in ex-parte proceedings to prove his case on his evidence which the trial court finds of probative worth. The trial court is not a slot machine. It has to evaluate the evidences even ex-parte before it. The substantial question of law framed by this court on 5.4.1999 overlook the aforesaid well settled principle. In the instant case the courts below have found that the plaintiff's evidence was inadequate for his suit to be decreed. That finding is one of fact on appreciation of evidence, though of the plaintiff alone. Nothing has been urged as to how the findings of the court's below are unsustainable in law and in what manner a substantial question of law therefrom arises. The impugned judgments suffer neither perversity nor are vitiated by any illegality. The second appeal is dismissed.